Workmen’s Compensation Act
(VIII of 1923)
S. 2—Workman—Burden of proof on the applicant.
If any person relies on the exception in the parenthetical clause, it is
for him to prove it. Other matters in the definition of the term workman, have
to be proved by the person asserting them, if it is denied that the person in
respect of whom the application was made was a workman. (1952) PLR (Lah)
822.
S 2(1)(b)—Permanent total disablement— Where
reduction in earning capacity in respect of works the workman was capable of
performing before the accident is total—disability sustained by the workman is
one of permanent total disablement.
A bus conductor was knocked down by another bus and as a result of the
accident his left leg became permanently disabled and he could not bend his
knee- joint nor could he run or stand for a long time. His physician certified
that he was unfit for active physical work. The Commissioner, Workman’s
Compensation. Dacca held that since the conductor did not completely and
permanently lose the use of his left leg and as he still could stand a while
and walk a short distance, the percentage of loss of his earning capacity
should be assessed at 25%.
Held: In a case under the Workman’s
Compensation Act the primary duty of the Court is to find out whether the
disablement is total or partial. In other words, the result of the injury
should be clearly and fully considered and it should be found out whether the
same produced a result of permanent partial disablement or permanent total
disablement.
The type of work which the workman was acquainted with and capable of
performing, prior to his sustaining the injury, could no longer be undertaken
by him due to the injury sustained by him. In view of the above, it is evident
that the reduction of the earning capacity in respect of the works the workman
was capable of performing was total and as such the disability sustained by the
workman was one of permanent total disablement. The expression, “as
incapacitates a workman for all work which he was capable of performing at the
time of the accident” as occurring in section 2(l) (b) of the W.C. Act clearly
relates only to those kinds of work which the workman was capable of performing
in relation to his earning of livelihood and does not mean a category broader
than that.
A.K.M. Shamsuzzaman Khan Vs. Chairman, EPRTC (1972) 24 DLR 94.
S. 2(1)(g) read with the proviso— ‘Partial
disablement’—When the earning capacity of the workman in every employment which
he was capable of undertaking at the time of the accident is reduced, it will
be partial disablement, and if such disablement is of a permanent nature it
will be permanent partial disablement. The proviso to section 2(I)(g) of the
Act only says that the injuries specified in Schedule Ito the Act shall be
deemed to result in permanent partial disablement irrespective of the fact
whether the earning capacity has been reduced or not.
Muslim Cotton Mills Vs. Din Islam (1959) 11 DLR 165.
S. 2(I)(1) read with the proviso—Total disablement’—When the disablement is such as incapacitates the workman for all work
which he was capable of performing at the time of the accident it is a case of
total disablement, and if such disablement is of a permanent nature it will be
permanent total disablement. The proviso only lays down that in cases of
injuries enumerated in the proviso to section 2(1) (I) they will be deemed to
be cases of permanent total disablement irrespective of the fact whether the
workman has or has not been incapacitated for all work which he was capable of
performing at the time of the accident.
Muslim Cotton Mills Vs. Din Islam (1959) 11 DLR 165.
—Workman’s case that he has been completely incapacitated for all
work—He is to establish such total disablement.
It is necessary for the appellant (workman) to prove that he has been
incapacitated for all work which he was capable of performing at the time of
the accident. In the absence of evidence in this regard and also in the absence
of any request having been made by him after the receipt of the report of the
medical specialist to show that he was really incapacitated for all work, no
finding can be claimed by the appellant that he has been incapacitated for all
work which he was capable of performing at the time of the accident.
Zohooruddjn Vs. Chairman, Pakistan Western Railway, (1969) 21 DLR (WP)
1.
S. 2(1) (n)—The word ‘included” in the heading of the
list of persons under the Schedule II— Explained.
Even if a workman does not come within the definition of section 2(1)
(n) but if he comes within the list of Schedule II he is a workman.
It was contended that the list enumerated in Schedule II is exhaustive
and unless it is shown that a worker comes under any one of the categories
mentioned therein he cannot be treated as a worker at.
Held: This contention is untenable because the
heading to the list under Schedule II starts by saying Schedule II is a list of
persons “included” in the definition of workman.
The intention of Schedule II was that no matter whether a workman did or
did not come within the definition as given in clauses (n) of section 2(1) of
the said Act if he came within any one of the categories enumerated in Schedule
II he was to be treated as workman.
Adam Ltd. Vs. Unisa Khatoon (1960) 12 DLR 858.
—Two conditions mentioned in clause (n) must co-exist for excluding one
from the definition of workman.
There is no force in the contention that if an employment is of casual
nature the workman is excluded from the benefit of the Act. Under clause(n) of
section 2(I) of the Act two conditions, namely, employment of a casual nature
and employment otherwise for the purpose of employer’s trade or business both
must exist before the exclusion can be operative.
The use of the word ‘and in clause (n) denotes that these two conditions
are to be read conjunctively and not disjunctively. Ibid.
—A labor that is paid his wages on a daily or weekly basis can also be
termed as a workman within the meaning of clauses (c) of section 2(1) (n) of
the Workmen’s Compensation Act, 1923.
Therefore, though his employment can be termed as of casual nature he
was still a workman within the meaning of section 2(l)(n) of the Act as the
purpose for which the was employed was for the employer’s business.
The EPWAPDA Vs. Mohar Ali Saiya (1970) 22 DLR 612.
S. 3—Arising “Out of employment”—Doing
something reasonable, necessary and incidental to one’s work in not creating
unnecessarily perilous situation for one self. (1952) PLR (Lah) 131.
—The word “employment” not synonymous with “duty or work”—The expression
“arising out of and in the course of employment” to be interpreted in the light
of facts of each case.
The word “employment” carries a wider connotation than the word “duty or
work”. The duty or work which the, workman is performing at the time of the accident,
if falls within the employment and even if it is not directly connected with
the object of the accident which though falls within the place, scope and
connotation of employment; then the accident would be said to have arisen out
of and in the course of employment. This view is influenced by the facts of
this case and cannot be held to be of universal application. Messrs.
Allied International Corporation Vs. Mst. Rashida Bibi (1969) 21 DLR
(WP) 306.
—S. 3(1)(b)—Dependants entitled to compensation
consequent upon death of a workman during the course of employment—Instances of
violation of any order or rule relating to safety by the deceased worker—No
ground to deprive him from such compensation.
The worker while in employment might tempted to do certain things which
otherwise may not be permissible and if by doing so the worker dies, law
intended that his dependants should not, due to any such default of inc
workman, be deprived of the compensation. The underlying principle is that
after the death of the workman, it is the dependants who are entitled to the
compensation and that they should not be deprived of it due to anything which
was not their (dependants’) fault. Messrs. Ibid.
Ss. 3 & 10—”Arising out of the employment”—The
workman working in railway yard while going to hospital for obtaining fitness
certificate required for his permanent employment met with an accident from a
collision with an engine—
Held: In the
circumstances the accident can be said to have arisen out and in the course of
employment.
Divisional Superintendent of Pakistan Western Railway Vs. Ali Zaman
(1967) 19 DLR (WP) 72.
S. 4—Death resulting from injury—Some kind of
casual relationship between the injury and death is all that is necessary.
The case on behalf of’. workman was that the workman suffered some
injuries while carrying a heavy load of the employer on 3rd October, 1955. He
was admitted in the hospital and was discharged there from on the 25th October
1955. The evidence disclosed it that he had suffered some internal injuries in
the spinal cord, could not resume his normal avocation after discharge from
hospital and died on 3rd Nov., 1955. It was contended in these circumstances on
behalf of the employer that the case of death of the workman had not been
established upon the evidence and, therefore, no compensation can be claimed on
the evidence led in this case.
Held: The cause of death in the case of workman
under the provisions of Workman’s Compensation Act has not to be established
with such particularity as in a criminal case.
There must be some kind of casual relationship between the injury and
the death and not that the death must be directly and specially attributable to
the particular injury caused.
Adam Ltd. Vs. Unisa Khatoon (1960) 12 DLR 858.
—Payments made towards medical expenses of an injured worker cannot be
deducted from the compensation payable to him under the Workmen’s Compensation
Act.
AKM Shamsuzzaman Khan Vs. Chairman EPRTC (1972) 24 DLR 94.
S. 10(1)—Delay in claiming compensation would be condoned
where after the accident the workman has been re-employed on the same terms.
Delay in the respondent’s claim for compensation was condoned by the
Commissioner and compensation in the sum of Rs. 2,520.00 was awarded to the
respondent for injuries sustained by him.
In the instant case, the delay is nearly two and a half years of the
occurrence of the injury. But the workman was re-employed by the appellant on
the previous terms and conditions. Following the Lahore, Bombay and Calcutta
decisions, I would hold that this re-employment was sufficient cause for the
respondent in not bringing his application for compensation within the
prescribed period of one year.
M/s. Indus Glass Works Vs. Safiruddin, (1968) 20 DLR (WP) 224.
S. 11—A fan in a part of the installations of a
house, consequently, it should be included in a ‘building’ and the painting of
the casing of a fan would amount to repairs within the meaning of the Schedule.
The ground level should be the level of the ground surrounding the
building and not of the floor after the level has been raised from the ground.
1952 PLR (Lah) 822.
S. 30—High Court cannot review a finding of
fact In an appeal under section 30 of the Workman’s Compensation Act the High
Court cannot review a finding of fact unconnected with law arrived at by the
Commission.
Adam Ltd. Vs. Unisa Khatoon (1960)12 DLR 858.
—Appeal against Commissioner’s order. Appellate Court can go into
question of fact when it is necessary to determine questions of law.
Messers Haji Obi Mia Vs. Sekandar Ali (1958)10 DLR 299.
—In an appeal under section 30 of the Act, the High Court cannot review
a finding of fact unconnected with law arrived at by the Commissioner on
evidence.
Muslim Cotton Mills Vs. Din Islam (1959)11 DLR 165.
—Whether the accident arose in the course of the employment is a
question of law.
If the facts are admitted and the only question to consider is whether
the accident arose out of and in the course of the employment of the workman,
the question to be determined is not a question of fact but one of law. 1953
PLR (Lah) 605.
Writ Jurisdiction
Writ jurisdiction can not be invoked by the Municipal Corporation to
nullify decision of the Controlling Authority.
When the Ordinance says that the Municipal Committee must obey the direction
of the Government and that direction is given by the Controlling Authority, any
attempt for nullifying the decision of the Controlling Authority tantamount to
disregard the very provisions of law and would amount to usurpation by way of
writ jurisdiction. The law says the decision of the Controlling Authority shall
be final.
Municipal Committee could not maintain a writ petition and the High
Court erred in law in setting aside the order of the Controlling Authority.
No writ petition is maintainable at the instance of a Municipality
against any decision of the Controlling Authority. Any other view will lead to
absurd position, namely, the Controlling Authority’s direction can be
challenged by a municipality by invoking the writ jurisdiction and thereby dismantling
the statutory structure.
Dacca Municipal Corporation Vs. Sonali Bank (1982) 34 DLR (AD) 247.
